Thursday, April 26, 2007

CA: 1,000 words are worth a picture

The defendant in Kozlow was convicted of disseminating indecent materials to minors in the first degree. To be guilty under the statute, a defendant must disseminate indecent materials to a minor and use the communication to convince the minor to engage in sexual contact with the defendant. (Kozlow, 2007 NY Slip Op 03592.) To fall within the statute, the electronic communication must "depict" nudity or sexual conduct. (Id. at __.)

The defendant in Kozlow sent emails to an investigator posing as a minor. The emails described, in writing, various sexual acts. (Id. at __.) No pictures were sent. On appeal, the defendant argued that, since the emails did not include pictures, the messages did not "depict" sexual acts. The Court of Appeals (in a majority opinion by Judge Pigott) disagreed. While noting that the word "depict" has its origins in a Latin word meaning "to paint", and that one definition is "to represent in a picture", "the word 'depict' also has a standard sense of 'to represent or portray in words' and it has been used in that manner since the colonial era." (Id. at __.) "Defendant's argument . . . that the Legislature was seeking to criminalize the luring of a child into a sexual encounter by transmission of visual images, while leaving a loophole allowing a predator to lure a child into sex through transmission of words alone, falls of its own weight." (Id. at __.)

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This Blog was founded by Eric M. Dolan, Esq., in April of 2005. Mr. Dolan, a former member of the Monroe County Public Defender's Appeals Bureau, maintained the blog until 2007. He now has an active criminal law practice as an associate at Trevett Cristo Salzer & Andolina, P.C., in Rochester, New York.

From September 2007 to December 2008, this blog was maintained by Brian Shiffrin, Esq. Mr. Shiffrin is now a partner in the firm of Easton Thompson Kasperek Shiffrin LLP, a law firm dedicated to criminal defense.

From January 2009 until May of 2011, this blog was maintained by David M. Abbatoy, Jr., Esq. Mr. Abbatoy recently established THE ABBATOY LAW FIRM, PLLC, and concentrates his practice in appellate advocacy, post-conviction remedies, and criminal defense. You can find the firm on the web at www.abbatoy.com or contact Mr. Abbatoy by email at dma@abbatoy.com.

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